## Facts

- A federal grand jury investigated the financial dealings of a “Primary Target” and a related “Organization.”
- The Organization’s Executive Director (“Jane Doe”) had access to the Organization’s and Primary Target’s records and later became an investigation target.
- The government subpoenaed the Organization for documents and emails dating back to 1996, including materials on document retention/destruction and financial flows between the Primary Target and the Organization.
- The Organization produced many documents through counsel, but the government believed email production from computer hard drives was incomplete.
- The government issued a second subpoena and notified the Organization it would copy (image) hard drives to capture electronic data.
- After Doe discussed the subpoena and imaging notice with her attorney, agents imaged the hard drives and recovered deleted emails suggesting deliberate deletion to thwart the investigation.
- The government subpoenaed Doe’s attorney to testify and produce notes about communications with Doe regarding subpoena compliance and the imaging notice.
- Doe moved to quash, asserting attorney-client privilege and work-product protection; the government sought enforcement under the crime-fraud exception.

## Issues

1. Whether the government made a prima facie showing that Doe was committing or intending to commit a crime (obstruction of justice) sufficient to invoke the crime-fraud exception.
2. Whether the government made a prima facie showing that Doe’s communications with her attorney, and related attorney notes, were in furtherance of the alleged obstruction.
3. Whether the crime-fraud exception can pierce work-product protection for attorney notes tied to communications in furtherance of the alleged wrongdoing.

## Decision

- The Third Circuit affirmed the district court’s order enforcing the subpoena directed to Doe’s attorney.
- The court held the government made a prima facie showing of obstruction of justice based on circumstantial evidence, including the timing of subpoena events and recovered deleted emails.
- The court held the government made a prima facie showing that the relevant attorney-client communications were in furtherance of the alleged obstruction, warranting application of the crime-fraud exception.
- The court held that, to the extent the attorney’s notes constituted work product, the crime-fraud exception permitted compelled production for materials tied to communications in furtherance of the alleged obstruction.

## Legal Principles

- Attorney-client privilege protects confidential communications for legal advice, but it does not protect communications sought or used to further a crime or fraud.
- The Third Circuit applies a two-part crime-fraud test: (1) prima facie evidence the client was committing or intending a crime or fraud, and (2) prima facie evidence the attorney-client communications were in furtherance of it.
- The prima facie showing need not prove the offense by a preponderance; it must be evidence that, if credited, would establish the elements of the crime or fraud.
- The exception may apply even if the attorney is unaware of the client’s improper objective; the client’s intent and use of legal services controls.
- Communications presented as advice on subpoena compliance are not privileged when used to plan or execute destruction or concealment of evidence.
- The crime-fraud exception may also defeat work-product protection for materials sufficiently connected to communications or efforts in furtherance of the alleged wrongdoing.

## Conclusion

The Third Circuit upheld an order compelling an attorney’s grand jury testimony and production of notes because the government made a prima facie showing that the client used communications about subpoena compliance in furtherance of obstruction of justice through deletion or concealment of responsive emails, bringing the communications and related work product within the crime-fraud exception.


In re Grand Jury Investigation, 445 F.3d 266 (3d Cir. 2006)